Wis.LIRC ER Decision: Brown, Jennifer - April 13, 1998 - Retaliation - discrimination because of opposition to discrimination or filing complaint

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JENNIFER J. BROWN, Complainant

ALLIED PROCESSORS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199602719, EEOC Case No. 26G961721

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:

Paragraph 4 of the ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, Allied Processors, Inc., shall submit a compliance report detailing the specific action taken to comply with the commission's order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708."

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed: April 13, 1998
brownje.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The ALJ concluded that the respondent, Allied Processors, Inc., retaliated against Jennifer Brown, in violation of the Act, when it took steps to cause the termination of her employment by Swiss Miss. Allied Processors, Inc., petitions for a review of the ALJ's decision, asserting that his decision is in error and not supported by the evidence for three reasons.

First, Allied apparently argues that because the employment application Brown signed for employment at Swiss Miss stated she authorized "former" employers "to give any information regarding my employment or education together with any other information regarding me, whether or not it is on their records," Brown "waived any objection she may have had to any discussion between her employers regarding her unemployment compensation status or work restrictions." (1 ) This argument fails for at least two reasons, however. First, the application cited is Brown's application for employment at Swiss Miss dated October 29, 1993. Allied processors was not a former employer of Brown's at the time she completed this application. Brown did not begin work with Allied Processors, Inc., until December 1994. The commission notes that it was suggested at the hearing that Brown had completed a second application for employment with Swiss Miss in late August or early September of 1995. Susan Searing, the human resource representative for Swiss Miss, came to this conclusion based upon a September 5, 1995, letter addressed to Brown and thanking her for attending a general information session but stating that Swiss Miss would be pursuing other candidates at this time. No application by Brown dated in 1995 was submitted into evidence. Brown did not recall filling out a second application for employment at Swiss Miss, nor attending the general information session mentioned in the September 5, 1995 letter. Second, even if for some reason the commission were to believe that Brown had completed a second application, there is absolutely no evidence which establishes that she had listed Allied Processors, Inc., as a "former employer" on that application, or had consented to Allied Processors giving information regarding her employment to Swiss Miss company representatives. The respondent thus has no basis on which to rely on a claim of waiver by Brown.

The second argument the respondent makes is that the content of the telephone discussion between it and Swiss Miss was entirely appropriate. The respondent points to the testimony of David Mankowski, operations director for the respondent, that the purpose of his call was to ensure that Brown was not working while she was receiving unemployment insurance, and that this was entirely appropriate. Further, the respondent notes Mankowski's testimony that he was asked by Kurtis Boraas, senior human resources manager at Swiss Miss' Menomonie operation, why Brown was no longer working at Allied Processors, Inc., and that once asked he could not deceive Boraas regarding Brown's work restrictions because to do so would expose both companies to future liability. Finally, the respondent states that the ALJ's finding that Mankowski had indicated to Allied's bookkeeper, Kathryn Bryan, that he had verified the fact Brown was working for Swiss Miss but that she would not be working there any longer because Mankowski has friends in high places, is directly contrary to the testimony of Mankowski, and that Mankowski testified quite emphatically that he never made such a statement.

There are a number of difficulties with Allied's case as presented by this record. First, there is the clear inference of retaliation presented by the timing of the events that transpired in this case, and the testimony of Bryan. No more than a month or so after Brown filed a complaint of discrimination against Allied, Mankowski, who had been named in the complaint, and who had had a lengthy period of employment with Swiss Miss and was a personal friend of Boraas at Swiss Miss, called Boraas about Brown's employment at Swiss Miss. While the respondent maintains that the purpose of this call was entirely appropriate--to ensure that Brown was not receiving unemployment insurance while working--Bryan testified that after verifying Brown's employment at Swiss Miss, Mankowski told her that Brown "would not be working (at Swiss Miss) anymore" because Mankowski "still has friends in high places" at Swiss Miss. On September 1, 1995, Brown was notified by Swiss Miss that she was fired. If Mankowski had been truly concerned about whether or not Brown was receiving unemployment insurance while working, why would he state to Bryan that Brown would not be working at Swiss Miss anymore because he still had friends in high places at Swiss Miss?

Moreover, the ALJ accepted Bryan's testimony as true. Additionally, based upon Mankowski's own testimony, he is not certain what it is he told Brown. For example, Mankowski testified that he "believe(d)" he had a conversation with Bryan regarding Brown working at Swiss Miss while collecting unemployment from the respondent. Mankowski stated he "(did) not think" he said anything to Bryan other than asking for more details of the situation. Mankowski testified that he "did not recall" having a conversation with Bryan after speaking with Boraas and that he did not believe he would have told Bryan that Brown "was no longer working at Swiss Miss." Furthermore, Mankowski, who states that he called Boraas at Swiss Miss to see if Brown was working and collecting unemployment insurance at the same time, could not state whether or not the respondent notified the Unemployment Insurance Division of Brown's second job. Bryan testified that the respondent never got any notice that Brown had actually received any unemployment insurance.

Furthermore, neither Searing nor Boraas had direct knowledge as to why Brown was no longer employed at Swiss Miss. And while Searing apparently describes the work in the packaging department at Swiss Miss as requiring an ability to lift 65 pounds, Brown testified that she performed her work sitting down and that she was able to do all of the work required of her at Swiss Miss. Boraas conceded that during 1995 if someone stated that they could perform the physical requirements of a job, that Swiss Miss took them for their word, and that he did not know whether or not Brown had been asked if she could perform the physical requirements of the job.

The closeness in time between Brown's complaint of discrimination against Allied Processor's, Inc., Mankowski's call to Boraas at Swiss Miss and the subsequent termination of Brown's employment, together with Bryan's testimony, Mankowski's inability to state whether the respondent had notified the Unemployment Insurance Division of Brown's second job, Swiss Miss personnel's inability to state why Brown was no longer employed, Browns testimony that she could perform the work at Swiss Miss, and a lack of evidence showing that Brown could not perform the work at Swiss Miss, all suggests that Mankowski had caused the termination of Brown's employment at Swiss Miss in retaliation for having filed a complaint of discrimination against the respondent.

It is true that Brown's weekly unemployment insurance benefit payment could be reduced based upon her earning of wages at Swiss Miss. Wis. Stat. � 108.05(3). However, in the face of all the circumstantial evidence suggesting that it was Brown's complaint of retaliation against the respondent that caused the termination of her employment at Swiss Miss, it does not appear that Mankowski was simply concerned that Brown was receiving unemployment insurance while working. Indeed, Mankowski could not even state whether the respondent had notified the Unemployment Insurance Division of Brown's second job.

A third argument made by the respondent is that Brown was an employe-at-will who was terminated at Swiss Miss for her failure to be honest with that employer. First, the respondent again returns to Brown's employment application of October 29, 1993, citing language in the application which states, "I understand that if employed, I will be an employee at will; that is, my employment may be terminated with or without cause, with or without notice, at any time, at the option of either the company or myself except as otherwise stated in a written agreement." The respondent then cites testimony by Searing that the lifting restriction of Brown's position were thoroughly discussed at the general information session (a time before the applicants are hired where they are given information about the part-time pool), and that it is undisputed that Brown failed to disclose to Swiss Miss at that time, or any other, her work restrictions which made her ineligible for work.

The primary difficulty with this argument is that not even the Swiss Miss personnel could testify as to the reason for Brown's termination of employment at Swiss Miss. Brown concedes that she never told Swiss Miss about her lifting restriction. However, Brown testified that Searing told her she was terminated because of her lifting restriction, not because she had not been honest about her lifting restriction. Also, Brown testified that she could not recall completing a second application for employment or attending a second information session at Swiss Miss. Brown's alleged second application was not presented at the hearing. Assuming that Brown had not submitted a second application, the respondent apparently believes that Brown should have remembered what she had read on her employment application and was told in 1993, in 1995. Boraas conceded that during 1995 if someone stated that they could perform the physical requirements of a job that that would be adequate, and that he did not know whether or not Brown had been asked if she could perform the physical requirements of the job.

Next, the respondent refers to Boraas' testimony, asserting that because he indicated there was a very high turn over rate in the temporary work pool, making scheduling of those shifts dependent solely on the needs of the company, "(i)t is therefore extremely likely that the complainant was just simply no longer needed due to a lack of work." Again, however, as Boraas testified that he did not really know why Brown was no longer employed at Swiss Miss, this is nothing more than sheer speculation.

Based upon all of the above-stated reasons, the commission has affirmed the ALJ's decision finding that the respondent retaliated against the complainant, in violation of the Act, for having filed a complaint of discrimination against the respondent.

cc: William C. Stewart, Jr.
Chris A. Gramstrup

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Footnotes:

(1)( Back ) The actual language contained on the October 29, 1993 application completed by Brown reads: "By returning this application to the Company's representatives, I authorize all the persons, schools or employers named above (referring to the sections of the application titled Education and Employment Record) except those listed below: (Brown left this part blank) to give any information regarding my employment or education together with any other information regarding me."